Harris v. Harris (In re Hasty)
Decision Date | 28 October 2014 |
Docket Number | No. SD 32851,SD 32851 |
Parties | In re the Marriage of Thomas Leon Harris and Melanie Berlier Harris Thomas Leon Harris, Petitioner–Appellant, v. Melanie Berlier Harris, Respondent–Respondent. |
Court | Missouri Court of Appeals |
Attorney for Appellant: Christopher J. Swatosh, Ava, Missouri
Attorney for Respondent: J. Matthew Miller, Baird Lightner Millsap, Springfield, Missouri
Thomas Harris (“Father”) appeals the trial court's judgment granting sole physical custody of the parties' minor child to Melanie Berlier Harris (“Mother”). In his first two points, Father challenges the trial court's use of the language “sole physical custody” in the judgment because he claims it is inconsistent (1) with the “joint physical custody” language contained in the parenting plan incorporated by the trial court in the judgment, and (2) with what Father characterizes as the “significant periods of custody” awarded to him in that plan. Referring to those same periods of custody in his third point, Father claims that the award of such “limited physical custody” is not supported by substantial evidence. Because Father has failed to preserve any of his claims for appellate review by first raising them in the trial court, the trial court's judgment should be affirmed.1
“[N]o allegations of error shall be considered in any civil appeal except such as have been presented to or expressly decided by the trial court.” Section 512.160.1, RSMo 2000; see also Rule 84.13. “ ‘An issue that was never presented to or decided by the trial court is not preserved for appellate review.’ ” Brown v. Brown, 423 S.W.3d 784, 788 (Mo. banc 2014) (quoting State ex rel Nixon v. Am. Tobacco Co., Inc., 34 S.W.3d 122, 129 (Mo. banc 2000) ). As required by Rule 78.09, the trial court must be given the opportunity to rule on a question.2 Brown, 423 S.W.3d at 787. Adherence to this rule assists in resolving any alleged error at the earliest possible opportunity by “allowing the trial court to rule intelligently.” Id. at 787–88. It is a critical component in the efficient and timely resolution of disputes and the conservation of the parties' and the courts' limited resources. Id. at 788.
Failure to make known to the court an objection to the action of the court and grounds therefor will constitute a waiver of that objection on appeal. Mayes v. Saint Luke's Hosp. of Kansas City, 430 S.W.3d 260, 267 (Mo. banc 2014) (citing Pollard v. Whitener, 965 S.W.2d 281, 291 (Mo.App.1998) and Niederkorn v. Niederkorn, 616 S.W.2d 529, 535 (Mo.App.1981) ). A properly preserved objection will identify the law with respect to the particular legal claim, provide citation to authority, and apply that law to the facts of the case. Mayes, 430 S.W.3d at 270.
Father has failed to direct us to any place in the record on appeal where any of his claims in his first and second points were presented to or decided by the trial court. From our review, we have found nothing in the record where Father presented to the trial court any claimed inconsistencies between the “sole physical custody” language used by the trial court in the body of its judgment and the language or substantive provisions in the parenting plan incorporated into that judgment.3 Points 1 and 2 are denied.
Similarly, Father never argued or asserted to the trial court any claimed factual or legal deficiencies in the custody provisions of the parenting plan incorporated into the judgment. At the conclusion of the trial, the trial court offered the parties an opportunity to comment on or have a further hearing upon the Guardian ad Litem's (“GAL”) proposed parenting plan to be filed within a week thereafter. Father expressly waived both opportunities and affirmatively stated to the trial court that he would “rely” upon whatever the GAL submitted. After it was timely filed, the trial court adopted the GAL's parenting plan and incorporated it in its judgment without any changes. Father's failure to offer any objection to the GAL's parenting plan or request an evidentiary hearing to challenge any of its provisions and his implied invitation for the trial court to rely upon it waives and precludes any appellate review of Father's claim that the custody provisions in that plan, as adopted by the trial court, are not supported by substantial evidence. Brown, 423 S.W.3d at 788.4 Point 3 should be denied.
Having failed to preserve any of his claimed trial court errors for our appellate review, Father's appeal should be denied, and the trial court's judgment should be affirmed on that basis. Id. at 789.
Nancy Steffen Rahmeyer, J.
The judgment is affirmed. I agree with Judge Lynch's opinion that Point I is not preserved for appeal; however, I would reach the merits of both Points II and III. With that in mind, I will set forth the necessary factual and procedural history.
Thomas Leon Harris (“Father”) appeals the trial court's judgment granting custody of the parties' minor child (“Child”) to Melanie Berlier Harris (“Mother”). Father raises three points on appeal: (1) The trial court judgment erred by purporting to grant “sole physical custody” where the incorporated parenting plan provided for “joint physical custody;” (2) The amount of custody awarded was “significant” enough custody to actually be joint physical custody as a matter of law; and (3) The trial court judgment awarding the “limited” periods of custody was not supported by substantial evidence.
Father and Mother had Child together in California. The parties then married in Nevada and moved to several different states as a couple before deciding to separate. Mother moved back to California with Child and Father moved to Missouri. While Child was with Mother in California, Mother allowed Father to have contact with Child and allowed Father to be as involved as he wished in Child's life. Mother and Father orally agreed that Child would visit Father in Missouri for the summer and then return to California. Father unilaterally made the decision not to allow Child to return to California during the agreed upon visit.1 Father then filed for divorce and sole custody of Child, and denied visitation to Mother for over a year. He also refused to give any information concerning Child to Mother, and indicated to Child's school that Mother could not have school records, would not be notified in case of emergency, and was not allowed to take Child out of school. He had a policy at his home that, if Mother called, the phone was not to be answered. Father, who had a history of violence with Mother and Child, also posted violent and threatening messages about Mother on Facebook while the action was pending. Father traveled frequently and his live-in girlfriend, who “liked” all his violent messages on Facebook, cared for Child.
Mother had been the primary caretaker of Child, who had been diagnosed with autism
and Tourette's syndrome and who received specialized school services. Child was with Mother's sister at the time Father picked up Child and Father made no complaint to Mother about Child's cleanliness at that time. He did make a hotline complaint about Mother that was not related to Child's cleanliness. Father's custody plan presented to the court requested sole legal and physical custody; although Father testified he was willing to give joint custody “a try,” he continued to be hostile toward Mother. Mother also asked for sole custody of Child. The only issue at trial was the custody of Child.
A guardian ad item (“GAL”) was appointed to represent Child. At the close of trial, the GAL asked to present a parenting plan; his proposed plan provided that “the parties shall share joint legal and physical custody of the child.” Specifically, the plan provided that Mother would have custody of Child at all times that contact was not specifically designated to Father. The plan proposed custody to Father for spring break, summer, Father's Day, Labor Day, and alternating years for other major holidays.
The court issued an opinion letter that specified joint legal custody to both parties but sole physical custody to Mother and stated that Child was to have Mother's address for mailing and educational purposes. The court stated: If custody were to be given to Mother, Mother would be the primary caregiver due to her flexible work plans, but if custody were to be given to Father, Father's live-in girlfriend would be the default caregiver due to Father's need to travel for work. Mother would be more likely to allow Child to have meaningful contact with Father. Mother had allowed Father to visit Child, Mother had allowed Child to travel to Missouri, and Mother cooperated with Father in matters of custody. Father, however, unilaterally changed the custody agreement that the parties had orally agreed to by keeping Child beyond the set time, refused to let Mother have access to Child's school and medical information, and refused to supply Mother with Child's contact information. Father, by choosing to keep Child in Missouri and preventing Child's contact with Mother, either intentionally chose to subvert Child's best interests to his (Father's) own interests or lacked proper parenting judgment. Finally, the court found that the GAL's parenting plan best reflected the interests of Child.
The court directed Mother's attorney to prepare a written judgment for submission. This judgment stated, as the trial court opinion letter indicated, that custody would be joint legal custody with sole physical custody in Mother. The judgment also incorporated by reference the GAL's proposed parenting plan which still specified joint physical custody. Father moved to vacate, reopen, reconsider, and take additional evidence regarding the judgment. The grounds stated in this motion were that Child was distraught by the belief that he might have to move back to California and Child's school...
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